MARITAL RAPE : A CRIME WITH NO PUNISHMENT IN INDIA

Marital Rape or Spousal rape is often overlooked by the society. Indian society has its magnificent traces in patriarchy domain. Rape has grown tremendously in the recent years .§375 of the Indian Penal Code penalises a person for committing rape under six circumstances laid down in the instant section. After the landmark judgement of Nirbhaya gang rape and murder[1] the Parliament took a way forward step to address the  heinous crime which shook the entire society  and it led to Justice Verma Committee[2] which gave a report in record time and formed the base of Criminal Law( Amendment )Act 2013 which strongly adhered the recommendations put forth by the Committee  .  However the instant provision fails to address marital rape, it has rather stated an exceptional clause wherein it is stated that “Sexual intercourse with a wife not being under the age of 15 years is not rape”. Why are the law makers of the society still reluctant in addressing this tragic issue? Before going into the nuances of this brutal reality of marital rape, let us first know what exactly is meant by marital rape.

Marital Rape refers to non-consensual act of perversion by husband against the wife where she is physically and sexual abused. It is often considered to be battering rape, obsessive/ sadistic rape.

PREDOMINANCE OF PATRIARCHAL SOCIETY IN THE INSTITUTION OF MARRIAGE

The institution of marriage is deeply rooted in patriarchal society and gender inequality is prevailing in the Indian society since time immemorial. Marriage is a social institution. According to Robert Harry Lowie ‘Marriage is a relatively permanent bond between permissible mates’. There is a legal paradigm behind marriage. Right to marry is a part of right to life and personal liberty[1] [3] enshrined under Article 21 of the Constitution of India 1950 which runs as follows : ‘ No person shall be deprived of life and personal liberty except procedure established by law. Since India is a signatory to Universal Declaration of Human Rights 1947 it would be appropriate to mention Article 16 of UDHR 1947 which runs as follows:

‘1. Men and Women of full age without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during the marriage and at its dissolution.

2. Marriage shall be entered into only with the free and full consent of the intending spouses.

3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.

NEED FOR CRIMINALISATION

In the recent years, marital rape has been subjected to immediate attention  Women have been silent regarding their brutalities in order to preserve the sanctity of marriage and the reputation of the family in the society. Though married women are reluctant in reporting their domestic violence cases which are allegedly done by their own husbands, there seems to be a stir in the legal paradox of the instant matter in the recent years. Ample number of cases has been reported by the women who have been subjected to marital rape. As per Justice Verma Committee Report it was categorically stated that the exception of marital rape shall be removed. In one of the landmark judgement of marital rape, ‘ Independent Thought v. Union of India and Anr[4], in the instant case it was held that where the husband having sex with his wife aged between 15 and 18 would be considered as rape and not an exception, However this instant judgement came only for a particular age group and not for victims as a whole.

One of the important observations were made in another landmark judgement ‘ NimeshbhaiBharatbhai Desai v. State of Gujarat[5], the bench of J.B Pardiwala J. observed that wife is not a chattel and husband having sexual intercourse with his wife is not merely using a property, he is instead fulfilling his marital duty with a person with equal dignity to that he accords himself. He cannot be permitted to violate this dignity by coercing his wife to engage in forceful sexual intercourse without her full and free consent. Furthermore, the court urged that the time is ripe that the legislature intervenes and goes into the soul of this issue of marital rape as it is a serious matter which unfortunately is not attracting serious attention at the end of the discussions of the Government.

The aforementioned judgement had its imprints from Justice K.S Puttaswamy and Ors v. Union of India[6], the Supreme Court held that “ Privacy includes at its core the preservation of personal intimacies and sexual orientation. Privacy also includes right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to contra vital aspects of his or her life. An invasion of life or personal liberty must meet the three fold requirement of[7] :

  1. Legality which postulates the existence of law ;
  2. Need, defined in terms of a legitimate state aim
  3. Proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.”

RECOMMENDATIONS AND SUGGESTIONS

The latest round of National Family Health Survey (NHFS-4)[8] reveals some disturbing statistics about spousal violence. It shows about 31 per cent of every married women have experienced  physical, sexual or domestic violence at the hands of their spouse, with physical abuse being the most common .  Another startling revelation made by the survey is that 83 per cent of ever- married women between the ages of 15-49 years who have ever experienced sexual violence reported their current husband as the perpetrator with another 7 per cent reporting their former spouse. Out of which the most common form of reported sexual violence was the use of physical force by the husband for sexual intercourse against the will of his wife.  After highlighting the statistics of the Survey, it is highly recommendable that the issue of marital rape requires needful attention in the criminal jurisprudence. Legislatures should make required amendments with respect to the exception clause under §. 375 of the Indian Penal Code 1860.

REFERENCES


[1]Mukesh & Anr v. State For Nct Of Delhi & Ors. 2017, SC 05225 (India).

[2] Justice Verma Committee Report -PRS India https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf

[3] Shafin Jahan v. Ashokan K.M. 2018, SC 343 (India).

[4]Independent Thought vs. Union of India(U.O.I) and Ors., AIR 2017 SC 4904 (India).

[5] NimeshbhaiBharatbhai Desai v. State of Gujarat, 2018 GJ 0291(India) .

[6]Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors., 2017 SC 1604 (India).

[7] Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors., 2017 SC 1604 (India).

[8] Saba ; Marital rape: A husband cannot be permitted to treat his wife like a chattel and violate her dignity (Apr.18,2018)https://www.scconline.com/blog/post/2018/04/18/marital-rape-a-husband-cannot-be-permitted-to-treat-his-wife-like-a-chattel-and-violate-her-dignity/


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